Beruflich Dokumente
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1. DIVERSITY case parties are citizens of different states + case is worth more than 75k in
damages
a. Excess of 75k look at it from plaintiffs perspective how do you know? look
at the facts!
b. as long as one of the plaintiffs has a claim for 75 then its ok, but if none have a
claim for 75 then no diversity!
c. Legal certainty that the case is not worth 75k? then not working
d. REMEMBER PLAINTIFFS PERSPECTIVE
e. NEED TO BE DIVERSE CITIZENS OF DIFFERENT STATES
i. Plaintiffs and defendants need to citizens of different states where is
your permanent home and do you have the intent to stay there?
ii. One person must be a citizen of a us state and can sue a foreigner
iii. What if a corp is a party? where it is incorporated and/or where its
principal place of business is
2. FEDERAL QUESTION well pleaded co plaint rule federal rule in question must be
specifically plead in the plaintiffs complaint it must be clear that I am suing based on
federal statute/federal law
a.
TYPES OF HYPOS:
DIVERSITY Proper diversity jurisdiction citizenship and 75k
OR
Federal Question in the complaint by the plaintiff is the matter talking about federal law?
then Federal Question
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SUPPLEMENTAL JURISDICTION When normally a party or a claim couldnt get into federal
court but something is so similar about their claim then a federal court will grant them
jurisdiction, but federal court will allow other parties and other claims to join the suit against
you even if they wouldnt alone wouldnt satisfy the requirements of diversity
- If Derives from a common nucleus of facts will other parties/claims be able to
piggyback on your claims? YES
- Derive from common nucleus of facts court says its ok we will here the cae
- J v. B and Fred comes in
o Does Bs case derive from the common nucleus of facts?
o In a diversity case then we are looking for the same common nucleus of facts
AND
ALLOWED:
1. Compulsory counterclaim
2. joinder of parties in compulsory counterclaim
3. Cross claims
4. Impleader of 3rd party defendants
NOT ALLOWED:
1. Original Plaintiff v. 3rd party Defendant
2. Compulsory Joinder
3. Joinder of Defendants plaintiff trying to sue multiple
defendants
4. Intervention = plaintiffs trying to intervene
o So.Defendant trying to add a claim/party when they normally would not be
able to be heard?= OK
o So.Plaintiff trying to add a claim/party = NOT OK
HYPO:
Case is based on diversity
Adding parties;
Permissive joinder when may multiple plaintiffs join together
- if their claims come from a single transaction or occurrence
- and a question of law or fact is common
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- when the claim comes from a single transaction or occurrence + some sort of question
of law or fact is common
Compulsory joinder when MUST THEY
- if it would be unfair to litigate without them = necessary party leaving them out would
IMPAIR THEIR INTERESTS /when complete relief cannot be afforded without their
involvement
- IF cannot join due to jurisdiction = case may still proceed
NECESSARY IMPAIR INTEREST = if presence destroys jurisdictional problems like diversity they
cannot be in the case and we can still go forward
Vs.
INDISPENSABLE = PREJUDICIAL EFFECT -
= if there would be a prejudicial effect for them not ot be there, if presence destroys
jurisdictional problems like diversity Case must be DISMISSED it cannot go forward
Adding claims: if a plaintiff is suing a defendant each claims may add as many claims as they
want
What about smj? does the new claim require new smj?
PERSONAL JURISDICTION subject matter of the case itself that will get into court itself?
- Would it be fair to bring John into court?
- Are they present in the state in which the court will be heard?
- Am I domiciled in the state in which it would be heard
- PRESENCE in the state?
o How to get me into the state? long arm statute? which allows state a to bring
John into the state into federal court which allows jurisdiction over the individual
- CONSENT TO BE SUED THERE?
- DOMICILED THERE?
- Minimum contacts does the defendant have the minimum contacts with the forum
state where the case will be heard?
- Will be minimum contacts maintenance of the suit does not offend tradtl notions of
fair play and justice reasonably anticipate being called into court
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What if I am out of state? how to get me into the state? is there a long arm statute that
makes it fair to be brought into court - FAIRNESS?
- ****minimum contacts does the defendant have the minimum contacts with the
forum state? maintenance of the suit does not offend the traditional notions of fair
play and justice so that the defendant could reasonably anticipate being called into
court
- doing business in the state? activities based in the state? Advertising here/trying to do
business here/selling widgets here?
o Whether I am trying to do business/what are the basic activities/HOW OFTEN
AM I THERE?
o MBE QUESTION: What is John doing with the state? - how involved is he with
the state/what kind of activities the FACTS WILL TELL YOU DONT ARGUE
WITH THE FACTS - INTENTIONALLY TRYING TO BE IN THE STATE
o DUE PROCESS FAIR
o IF YES TO MC
o SERVICE OF PROCESS if its fair for john to be brought into the state then we are
talking about how they will serve him
o
o LIMITED TO: In federal court, to limits of the state where the district court sits
OR if long arm statute
o EXCEPTION: 100 MILE BULGE PROVISION out of service will be allowed
anywhere w/in 100 miles of the federal courthouse where the suit is pending but
only applying to out of staters
o Outside party 3rd party defendants AND Indispensable parties = additional
parties to an existing case
Service of process assuming MC is present serving me in a fair way or I would have NOTICE -
does it look it would be reasonable for the defendant to get notice? does it seem like it would
work? if a corporation then who do you serve? (officer/agent/anyone authorized/someone in
high level of placement)
- FAIR IF:
o Not a party
o Over 18
- Personal: Fine
- Substitute: indirect:
o FAIR IF:
leave it with someone of legal age
likely to give it to the defendant
- FIRST CLASS MAIL: generally ok
o Can be ok
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In rem jurisdiction:
REMOVAL
VENUE
JURY TRIALS 7th amendment federal truials right to jury at least 6 not more than 12
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Balanced pool 7th amendment=jury should be comprised of a rep slice of the overall
community
MOTIONS
Unless you make them in a motion or your answer whichever comes first
1. Personal jurisdiction
2. Improper venue
3. Insufficient process
Must bring any of these 3 in Motion or Answer, whichever is first, if not then WAIVED!
Motion for Failure to state a Claim upon which relief may be granted even if every fact is true
no recovery is possible bc there is insufficient fact to support any kind of a claim usually may
be raised at any time before or at trial
motion to strike generally made within 21 days of service redundant immaterial information
for a more definitive statement responding if the pleading is vague or ambiguous you are
bringing a motion for a more definitive statement.
Summary Judgment
VIDEO 3: VERDICTS:
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Default Judgment one party fails to plead or defend plaintiff sues defendant and defendant
does not sue at all
DISMISSAL:
Voluntary dismissal P may voluntarily dismisses his/her own action anytime before the
defendant answers or moves for summary judgement once without prejudice
- 1. Once without prejudice
- 2. Before defendant answers/summary judgement
- 3. After defendant answers need court approval
judicial bias: c
challenge a judge for cause when there is an appearance of bias by the judge him or herself
is there bias by the judge or does it just look bad???
appearance of bias MAY BE WAIVED BY PARTIES
but if specific grounds for recusal they may not be waived and the judge must be recused
judge or their family member
1. personal knowledge of facts
2. judge acted as a lawyer in any matter or controversy w/another lawyer associated with
a lawyer in the case
3. financial interest
4. expressed opinion about the merits of the case previously
ACTUAL JUDICIAL BIAS = PARTIES MAY NOT WAIVE
Directed Verdict/Judgment as Matter Of Law
RES JUDICATA claim OR COA preclusion whether a claim or cause of action may be relitigated
-
-civil version of double jeapordy usually NO
SAME PARTIES SAME CAUSE OF ACTION/CLAIM
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IF THE PLAINTIFF WINS their claim is merged into the judgement and the same cause of action
cannot be the source of the suit
LOSER BARRED
Collateral estoppel issue preclusion: issue must be actuallylitigated and decided in the first
case ad must have been necessary to the judgement
Vs .res judicata . Side not
Originally parties are generally going to be bound by this
Split up claim of damages, look for legal vs. equitable property v. personal
nots
DEFENSIVE USE OF COLLATERAL ESTOPPEL IS GENERALLY PERMITTED party was not a party in
the first trial and now is present in the 2nd trial as a defendant. John sues ABC Co. and loses.
Now John sues Co. 2 in trial 2. John lost the first case. Co 2 is going to say john is collaterally
estopped from litigating the issues in the first case.
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Offensive use:
John sues and wins. Now Bob sues and is the new plaintiff. He is going to try to collaterally
estopp the company from denying liability. Generally doesnt work.
Full faith and credit: RESPECT FOR THE JUDGMENT OF STATE 1. THE JUDGEMENT OF 1 STATE
MUST BE GIVEN RESPECT FOR THE OTHER STATE.
Judgement in STATE A AND STATE B must give respect to judgment rendered in state b.
New Trial
Pleadings:
1. Complaint filing ALONG WITH THE SUMMONS begins the action. Esp for statute of
limitations of concerns. WITHIN 120 DAYS ACTUALLY SERVED
a. Complaint along with the summons with the clerk of the court and within 120
days of SERVICE
b. Fiing commences
c. 3 basic elements
i. 1. Jurisdiction short and plain statement of the grounds for jurisdiction:
what kind of jurisdiction wil the case be heard on?
ii. 2. Statement of the claim BASIC SHORT STATEMENT OF THE FACTS/NO
LEGAL THEORY NEEDED
iii. 3. CLAIM FOR DAMAGES claim for relief
d. couple of times where the complaint needs to be plead with more specificity
FRAUD/SPECIAL DAMAGES = SOME SORT OF UNIQUE CLAIM FOR RELIEF Then
the
PERMISSIVE :
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Relate Back the time of the amending will relate back to the original complaint
-= when will my amended pleading relate back to the original pleading? It will as long as it arose
out of the conduct, transaction, or occurrence set out in the original pleading. If the claim or
the defense arose from the conduct transaction or occurrence that is related to the original
complaint itself
= date goes back to the original date so long as what I am changing is from the same thing
- When I am amending a change in the party? = Relate back for PARTIES:
- 1. Arose out of conduct, transaction, or occurrence
- 2. Within 120 days of filing party had notice
- 3. Knew or should have known but for mistake of ID
can it go back to as if it were from the original pleading? yes relates back to the original date
if.
RULE 11 lawyer signing the pleading: is not promises to the court that they are not making
stuff up: to the best of their knowledge and belief they are not putting anything forth
- attorney signs to best information and belief, facts, law, denials and purpose all ok
- to best of information and belief, facts, laws, denails purpose all ok
-
Changing parties vs. claims:
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Law vs. fact on appeal: facts only set aside on appeal if clearly erroneous
Harmless error rule only applies if it would have made a difference if they didnt really
change the outcome then nothing is going to happen.
Final judgment rule - Need to have a final judgement in order to have an appeals
= collateral order exception issue is unresolved = resolves an issue that separate from the
merits of the action. Delay would cause severe damage + collateral issue separate from main
issue
1 claim in a multi issue claim suit has had a final judgement on it judge orders a final
judgement on that issue, you may appeal it if its separate from underlying merits of the action,
collateral order rule applies y\
if there is an issue an case that is separate from the underlying merits in the action then the
collateral order rule would apply.
Injunctions:
You can appeal the granting/denying of an injunction before all the issues in a case have been
judged. If a particular issue in a multiclaim case can be resolved on its own you can appeal.
CLASS ACTIONS
1. diversity only the reps of the class need to satisfy jurisdictional reqs with the other
side
a. Citizenship of the representatives is what counts
b. 1 member named has a case worth more than 75k (NAMED PARTY)
i. EXCEPTION: nobodys got a 75k as long as the class action totals 5
million the entire case itself than its ok
2. prereqs for the class action:
TYPES:
1. b1 class action: allowed if the risk of inconsistent decisions would about impairment to
the interests of the members = members may not opt out in order to represent
themselves impair interests of members of the class
2. B2 = injunctive relief MEMBERS MAY NOT OPT OUT
3. B3 = common question throughout members of the class and the class action is the
superior method to all other methods MEMBERS MAY OPT OUT!
NOTICE TO MEMBERS:
ALL OF THE MEMBERS OF B3 must be given notice sent notice via mail for example
B1/B2 DISCRETION OF THE COURT
The court must certify this case as a class action Certify Class B1/2/3
- Can you have just a subclass action: YES
- Proper class action moves forward but if CERTIFICATION OF CLASS DENIED (for lack of
common question for example, then DENIAL MAY NOT BE APPEALED
Intervention: when people who are not part of the original lawsuit want to join on their own
when a 3rd person/stranger wants to come in on their own
1. Intervention as of right: no court permission is needed
a. Interest in property/transaction
b. Interest is impaired
c. no court permission is needed
2. permissive intervention: claim or defense that has a
a. claim or defense that has a common question of law or fact:
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interpleader lawsuit: one party owes some amount to 2 or more people force other people to
fight it ought themselves
- make you guys apportion the money
- 1. Statutory interpleader:
o as long as 2 claimants are diverse that is OK
o only $500 must be at stake
o nationwide service of process is allowed
o person deposits money/property in court or bond
- 2. Rule interpleader:
o owe something to 2 or more people but now it requires COMPLETE DIVERSITY
b/w claimant and ALL persons on the other side
o No nationwide service is allowed
o 75k of the claim itself
o Not required to deposit the money/property in court
- 3. 3rd party interpleader = Defendant believes that a third party is liable for all or part of
the claim contribution/indemnification cases
cross-claim = one defendant may sue another defendant = co parties sue each other = same
transaction or occurrence + looking for actual damage .looking for actual relief
DISCOVERY:
Any matter which is not privileged and relevant
- not about admissibility
- about privileged information
- and relevancy
work product RULE: generally that is privileged and will stay privileged unless there is a
substantial need for the material and cannot without undue hardship obtain it without
substantially equivalent other means
Absolute immunity:
1. mental impressions
2. options
3. legal theories
4. conclusions
witnesses and names and locations of all people who have discoverable information must be
disclosed as long as its discoverable it must be provided to other side
Party must give the party the other side the identification of the expert and the expert must
prepare a report detailing their opinions, the basis of the opinions, data, exhibits,
compensation,
methods of discovery:
Depo:
Generally dont need the courts intervention may depose a party or a non-party
If trying to get anon party to take a deposition you can subpoena them
Limit of 10 depositions and cannot depose the same person more than 1x without the courts
permission
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What if you fail to abide by the discovery rules? = court may order SANCTIONS
- Ways to maintain control for failing to abide by the rules:
- Object to request = RELEVANCY
- Protective order stop discovery (to avoid embarrassment, undue burden)
- Compel discovery -
Protective order or compel discovery or someone is acting beyond unreasonable standard then
sanctions may be imposed by the judge
Pre Trial Conference: judge uses different meetings in effect to take control of the timing
1. Conference parties = court MUST have conference , parties must submit discovery plan
2. Scheduling conference:
a. Court MUST have conference, limiting time
b. Must issue SCHEDULING ORDER within 120 days of filing complaint
c. Cannot be modified unless good cause
d.
3. Final pretrial conference
a. Judge may hold conference
b. If there is conference, must issue a PRE TRIAL ORDER
c. ONLY MODIFIED BY GOOD CAUSE
VI. ERIE
2 scenarios :